August 4, 2016
Deontay Wilder and Lou DiBella have filed a Motion to Dismiss the claims of Alexander Povetkin and his promoter. The motion reflects what might be a long, hard fight in court.
As you may recall, in June Wilder and his promoter, Lou DiBella and DiBella Entertainment filed a lawsuit against World of Boxing, LLC (“WOB”) and Alexander Povetkin in New York. The lawsuit claimed that Povetkin breached a Bout Agreement when Povetkin tested positive for Meldonium, a banned substance. Due to the finding, the World Boxing Council (“WBC”) issued a ruling that the fight, set for May 21, 2016 in Russia, would not go forward.
When news of the positive test surfaced, Wilder’s attorney notified the Escrow Agent, that the $4,369,365 deposited by Povetkin’s promoters should not be disbursed back to World of Boxing until a joint instruction from the parties “or a non-appealable order from a court of competent jurisdiction” advised the Escrow Agent it could disburse the funds.
Shortly after Wilder’s lawsuit, WOB and Povetkin filed 3 counterclaims. Two claimed breach of contract regarding the Bout Agreement. It claimed that Wilder was never in Russia on the date of the fight and this was the reason for the WBC announcing a postponement. Secondly, it claimed breach due to the fact that Wilder’s attorney instructed the Escrow Agent not to release funds.
The third allegaton for defamation claims that Wilder’s camp stated “falsely” that the fight was “canceled rather than postponed.” Also, there are accusations that Wilder’s camp stated Povetkin “cheated” due to the Meldonium finding. Notably, the Meldonium issue is downplayed in the motion.
Wilder submitted a declaration which claims that he was in England training for his fight when he learned of the drug test but did not intend to return to the US until after an announcement from the WBC. He claims he did not travel home until May 16, 2016. He includes his boarding pass home as evidence. They also submit the declaration of the travel agent that arranged Wilder’s flight back to the United States. Wilder’s attorneys also cite a tweet from Povetkin’s promoter which stated that the fight was not going forward prior to the WBC announcement.
This evidence is meant to prove that Wilder’s absence from Russia during the timeframe of the fight did not cause the postponement of the fight.
As for the defamation claim, Wilder’s attorneys cite the fact that “truth is an absolute, unqualified defense” to a defamation claim. In addition, opinion or rhetorical hyperbole is not actionable. It also argues that WOB and Povetkin cannot prove that any statements made were done with “actual malice.” This would relate to the comments about the positive test regarding Meldonium.
Wilder’s attorneys argue that Povetkin, as a public figure, must show the statements were made with knowledge that the statements were false or with reckless disregard of its falsity.
WOB and Povetkin’s complaint cite 13 statements of purported defamation. Each of which Wilder’s attorneys strike down.
In addition, Wilder’s attorneys argue certain procedural issues which would preclude the lawsuit from going forward.
WOB and Povetkin’s attorneys argue that the motion was filed in violation of the court rules in a letter to the court.
Wilder’s attorneys were out of town and indicated that they would respond once they are backwhich is Friday, August 5th.
MMA Payout will keep you posted.
July 30, 2016
The lawyers for Golden Boy have requested a continuance in the antitrust trial against Al Haymon. The date, originally set for the end of January 2017, is going to be pushed to March if the court agrees with the unopposed motion.
A declaration by Golden Boy’s lead counsel, Bertram Fields, requests that the trial date set for January 31, 2017 is continued until March 13, 2017. The reason being is that Fields is teaching a class at Stanford Law School during winter quarter. He advised the court that it would include the need for Fields, who practices law in Los Angeles, to fly to Palo Alto each week to teach.
Notably, Fields states in his declaration that the court had advised that the entire case should take just 4 court days to complete while Golden Boy believes that the case is a complex antitrust case that would take at least 10 court days to complete. He states in his declaration that even his original estimate of 10 days may have been conservative.
The motion went unopposed according to Golden Boy’s court filing and if this is correct, it pushes the date to at least March 2017. This probably give Haymon some extra time and something in their pocket to use if they need to request something from Golden Boy or the court. Fields, the savvy lawyer that he is, includes some argument in his own declaration to contend the need for extra time.
July 28, 2016
On Thursday, the WWE announced its second quarter earnings for the year. Despite record revenues, the company’s Q2 profits missed expectations.
According to the WWE earnings call held Thursday morning, revenues grew 32% to a record $199M. Profits are off due in part to spending which included Wrestlemania.
The WWE Network hit 1.52M average paid subscribers which is up 25% over Q2 last year. The Network revenues generated $51.8M in revenues. Per the WWE earnings release, the average monthly churn declined 20% to 9.9% for the first six months of 2016 from 12.3% for the comparable period in 2015.
The release of its earnings comes on the heels of a lawsuit filed earlier this month by over 50 former WWE performers related to head injuries. S&P Global Ratings warned on Thursday that sports-related brain injuries are among the biggest new area for insurance claims.
Of the other numbers indicated in the earnings release was that live events were up from this time in 2015. In 2016, live event net revenues were $51.9M versus $26.4M in 2015. This is due in part to increased ticket prices.
Notably, there were no questions about Brock Lesnar and his failed USADA tests in the UFC. Of course, this may not have a direct impact with the financials. Then again, the fact that the information has surfaced that he was not subject to the WWE Wellness Policy which tests its performers for banned substances might raise questions. In addition, a question about the UFC came about during the call. Essentially, the WWE noted that the UFC is a private company and the sale reflected “the value people are putting on branded live content.”
July 27, 2016
UFC has renewed its broadcast rights partnership with United Kingdom and Ireland provider BT Sport per press release.
The deal allows for BT Sport to the exclusive right to air live UFC events throughout the UK and the Republic of Ireland. The deal allows for BT Sport to show over 150 hours of live UFC coverage including all of the numbered UFC PPVs and all EMEA (Europe, Middle East and Africa) events. Terms of the deal were not disclosed although the deal will run through 2018.
According to the Daily Mirror, there was some competition for the UFC rights deal with Sky.
The timing comes prior to the big Conor McGregor-Nate Diaz rematch at UFC 202 which should garner a lot of viewers in the UK and Ireland due to Conor. The deal solidifies the UFC’s broadcast deal in an area with which they hope to grow with the new ownership.
July 22, 2016
Former Bellator middleweight champion Alexander Shlemenko had his three-year suspension and $10,000 fine from the California State Athletic Commission (CSAC) reduced per a judicial court ruling in Los Angeles Superior Court this past Wednesday. The fine was reduced by the court and he should be able to return to fight in the state upon paying the reduced fine of $5,000.00. His suspension was deemed to have ended on February 28, 2016 per court order.
Schlemenko was represented by Howard Jacobs. Notably, Jacobs is representing Jon Jones with his recent drug suspension which caused him to miss UFC 200.
Per the CSAC, Shlemenko tested positive for steroids after Bellator 133 on February 13, 2015.
In a court ruling filed on July 18, 2016, the court sided with Shlemenko’s argument that the CSAC violated his due process rights by increasing his suspension from 1 to 3 years following his appeal. It also sided with Shlemenko that the CSAC was wrong in assessing two $2,500 fines for providing a false statement on an alleged application for license.
Shlemenko argued that the CSAC violated his due process rights because it increased his penalty following his appeal of the initial suspension. The court sided with Shlemenko as it stated: “Petitioner [Shlemenko] could not have known that by appealing the suspension of his license he was reopening the issue of the length of the suspension.”
CSAC increased Shlemenko’s suspension from 1 to 3 years after his appeal of the original punishment. The court notes that a 3 year penalty “was not even discussed until the closing briefs on the penalty issue, and by that time Petitioner was unable to respond.”
As for the fines, the court agreed with Shlemenko’s argument that the CSAC wrongly imposed two fines on Petitioner for false statement in his pre-bout questionnaire and lab intake form relating to his non-use of drugs. The court agreed that the statements were not made in connection with an application for a license.
In addition, Shlemenko claimed that the CSAC’s decision should be overturned because it “denied his right to have a second “B” sample of his urine taken to be opened and tested in his presence if the “A” sample tested positive for a banned substance. The court denied Schlemenko’s argument stating that it was not required for the CSAC to take a “B” sample to validate the test of an “A” sample.
The court also denied Shlemenko’s claim that he was denied a fair hearing because “the Commission improperly conducted its own research and exhibited bias against Petitioner and his counsel.” The court stated that there must be “concrete evidence” of bias and prejudice which they did not find in this instance.
The court ruling means that Shlemenko has served a suspension of over a year. But the legal process saved him an additional two year suspension and CSAC fine. The due process ruling clarifies some of the administrative issues with the process of fines and suspensions.
July 20, 2016
The Zachary Light-Bellator lawsuit in California is getting personal. Bellator has filed a Cross-Complaint against Light stating that he stole money from the company and did not pay back a loan given to him due to the fact he was in financial trouble.
Light filed the lawsuit claiming wrongful termination back in May in Los Angeles Superior Court. Bellator was granted an extension to respond to the Complaint and it’s also filed its own Complaint against Light filed July 12th.
The cross-claim digs right into Light stating that Light told Bellator, that, “despite his sizable income, he had difficulty managing his family budget and was experiencing financial distress.” Bellator loaned Light $9,403.00 and entered into a written agreement to pay back the loan. Bellator attached a copy of the alleged agreement as an Exhibit to its Cross-Complaint. The company also claims that Light stole $4,600 in cash from VIP ticket sales from Bellator 136. Bellator claims Light now owes $5,050.00 plus interest.
Conversion, the civil claim alleged by Bellator, is essentially stealing. It also claims theft under California law and a breach of written contract which alludes to the purported failure of Light to repay the loan.
Bellator claims that as part of his job, Light “would collect the money he received from the sale of consignment and VIP tickets in connection with Bellator events, and remit the money to Bellator personnel shortly after he received it from purchasers.” He would then give the money to Bellator’s Chief Financial Officer, Michael O’Roark or Jane Estioko, Manager of Talent Relations. However, Bellator claims that Bellator remitted to Bellator “at least some of the money” he failed to give “thousands of dollars he collected.” The Monday after the event, Bellator 136, Light did not report for work citing medical reasons.
With respect to his financial issues, Light and Bellator entered into an “Authorization for Deduction” on December 18, 2014 for $6,974.57 in which he would repay the loan in monthly installments of $240.50 from his paychecks. It also appears that Bellator was charging him interest on this loan. The exhibit to the Cross-Complaint is below.
Light will have an opportunity to respond to these allegations. Obviously, these claims were filed as a result of Light’s lawsuit. The lawsuit is turning personal as Bellator infers the fact Light has had financial difficulties throughout. The loan was from December 2014 and the alleged theft occurred in April 2016. Were there any other issues in between this time that Bellator is holding back for the lawsuit or are these two issues the only claims against Light? Certainly Light will deny both claims.
The one question is why would Bellator give Light the responsibility of handling money on the company’s behalf if it believed he had an issue with finances. MMA Payout will keep you posted.
July 18, 2016
On Friday, Brock Lesnar was flagged by the United States Anti-Doping Association (USADA) of a potential violation of the UFC anti-doping policy due to an out of competition test from June 28, 2016. Although testing results of Lesnar’s “B” sample are yet to be revealed, the fallout from Lesnar’s appearance hurts the UFC and possibly the WWE.
On June 5, 2016, it was announced that Lesnar would fight at UFC 200 on July 9, 2016. The signing was unprecedented because he was under contract with the WWE. Yet, the WWE granted Lesnar the chance to fight in the Octagon once again. Despite the fact that the WWE has its own drug testing policy (known as the Wellness Policy – Lesnar has never been flagged for a violation), Lesnar was tested by USADA eight times in just the month lead-up to his fight against Mark Hunt. He took 5 tests in the first two weeks after it was announced he was returning. Multiple tests came up clean.
Despite the tests, the UFC policy handled by USADA dictated that a returning athlete to the UFC most give the company four months written notice so that USADA can put the athlete in the pool of those it may selectively test. But, the UFC anti-doping policy allows an exemption for a returning athlete that may be subject to drug testing. Per 5.7.1 of the UFC anti-doping policy:
An Athlete who gives notice of retirement to UFC, or has otherwise ceased to have a contractual relationship with UFC, may not resume competing in UFC Bouts until he/she has given UFC written notice of his/her intent to resume competing and has made him/herself available for Testing for a period of four months before returning to competition. UFC may grant an exemption to the four-month written notice rule in exceptional circumstances or where the strict application of that rule would be manifestly unfair to an Athlete.
The key sentence here is the last sentence: “UFC may grant an exemption to the four-month written notice rule in exceptional circumstances or where the strict application of that rule would be manifestly unfair to an Athlete.”
Since the UFC Anti-Doping Policy did not begin until July 1, 2015 and Lesnar’s last fight in the UFC prior to UFC 200 was December 2011, he was considered a new athlete. There has not been an official statement as to whether the UFC granted the 4-month exemption due to an “exceptional circumstance” or if it was “manifestly unfair to an Athlete.” Of course, either waiver could be easily explained.
But, one has to think that Lesnar and the UFC had contemplated his return as he had been training prior to the June announcement of his return to the Octagon. One might suggest that Lesnar could have notified the UFC of his return in the requisite 4 months to allow for the proper testing to occur.
However, it would seem that the parties wanted the Lesnar announcement to be a surprise. Recall, that Ariel Helwani and others from MMA Fighting were thrown out of a UFC event and Helwani was banned for life due to his report of Lesnar’s return prior to the UFC’s opportunity to make it themselves. Helwani along with his colleagues were reinstated a couple days later.
Notwithstanding the notice issue, let’s take a look at what Lesnar could face as a result of testing positive for a banned substance. First, Lesnar’s “B” sample, a second sample taken to determine the validity of the finding in the first sample, must confirm the initial finding of a banned substance. If this happens, Lesnar will face discipline from Nevada and the UFC per the anti-doping policy.
Since the infraction took place in Nevada, Lesnar will have to appear before the Nevada State Athletic Commission to address the drug test failure. At that time, we should know what drug(s) Lesnar tested positive for in his out-of-competition sample. In 2015, Nevada adopted guidelines for combat sports which included a 36-month suspension and 50-75% of the purse for a first-time offender for someone taking anabolic steroids.
In addition, the UFC anti-doping policy would discipline Lesnar.
Under Section 10 for Sanctions on Individuals, Section 10.1 specifically states:
An Anti-Doping Policy Violation occurring during, or in connection with, a Bout may, upon the decision of UFC, lead to Disqualification of all of the Athlete’s results obtained in that Bout with all Consequences, including, without limitation, forfeiture of title, ranking, purse or other compensation, except as provided in Article 10.1.1.
Read broadly, under the UFC-USADA Anti-Doping Guidelines, Lesnar could have his purse for the bout and “other compensation” taken from him. It would hurt enough that Lesnar would lose out on his $2.5 million reported purse but “other compensation” could mean money he makes from his PPV “upside.”
Not only could that happen, but the section further states that UFC could fine Lesnar up to $500,000 per Section 10.10 of the UFC-USADA Anti-Doping Guidelines. In addition, he could have his win against Mark Hunt overturned to a no decision per discretion of the Nevada State Athletic Commission according to section 467.850. This would not sting as much since Lesnar did not have a win bonus to forfeit. Regardless, he still could have a substantial amount of money taken away.
The monetary fine would be the hardest penalty for Lesnar. The $2.5 million is the largest reported payout for a UFC fighter in its history. But, Lesnar was going to make more from his PPV guarantee. It is being reported that the UFC 200 PPV drew 1.1 to 1.2 million PPV buys. In most markets, the PPV for UFC 200 was $59.99 HD and $49.99 SD. Lesnar was projected to make $3-5 million in addition to his $2.5 million.
Mark Hunt, Lesnar’s opponent has demanded that he receive half of Lesnar’s $2.5 million or else he is requesting his release from his UFC contract. Hunt, who made $700,000 for taking on Lesnar, will be disappointed to learn that under the UFC-USADA guidelines, any money forfeited by an athlete would be under the UFC’s discretion “to be applied to offset the costs of the Program or given to anti-doping research.”
The UFC could also fine Lesnar pursuant to its Code of Conduct which imposes discipline based on misconduct. Under its Code, “misconduct” may include, “Conduct that undermines or puts at risk the integrity and reputation of the UFC.” A violation of its drug program could fall under this.
There is precedent for a fine as Jon Jones was docked $25,000 for failing a drug test in December 2014. Of course, Jones’ drug test failure was for cocaine use. We note that the detection of this drug was done out of competition and should have not been tested for according to the rules.
Lesnar’s only statement related to Friday’s news of his potential violation was a vague “we’ll get to the bottom of this.”
The WWE does not seem to be concerned with the potential violation and has indicated his next appearance will be at its big event Summerslam, August 21st. They have not addressed the potential violation. From its perspective, its an MMA matter, that a WWE matter.
However, the question looms as to whether a Nevada State Athletic Commission suspension would affect his wrestling career. Some state athletic commissions oversee professional wrestling. Most commissions honor suspensions of an athlete in other states. Would a suspension in combat sports carry over to professional wrestling? We will see.
July 17, 2016
I hopped on with Paul Gift and John Nash of Bloody Elbow to discuss the UFC sale and the future impact. We also learned at the end of the episode that Brock Lesnar was flagged for a potential UFC anti-doping policy violation.
June 26, 2016
Although Deontay Wilder is scheduled to fight Chris Arreola on Fox next month, he’s embroiled in a court battle against Alexander Povetkin and his promoter, Andrey Ryabinskiy due to a purported failed drug test which scratched the fight between the two.
On June 13, 2016, Wilder filed a lawsuit against Povetkin, Ryabinskiy and World of Boxing, LLC (“WOB”) for breach of contract and seeking the court for a declaratory judgment. In addition to the money that has been put up in escrow for the fight
10 days later, World of Boxing, Povetkin and Ryabinkiy (“WOB”) filed sued against Wilder, Lou DiBella and DiBella Entertainment, Wilder’s promoters. WOB is filing claiming causes of action for breach of contract as well as defamation.
Both lawsuits were filed in the U.S. District for the Southern District of New York.
Wilder and DiBella Entertainment, Inc. v. World of Boxing, LLC and Alexander Povetkin
The lawsuit claims breach of contract against WOB and Povetkin.
The facts, as told by Wilder’s attorney are below. Also added, are additional facts from the WOB lawsuit which we identify as well.
- The World Boxing Council (“WBC”) ordered Wilder and Povetkin (as the mandatory challenger) to begin negotiations for Wilder’s mandatory title defense of his WBC World Heavyweight Championship.
- No agreement could be made and a purse bid was ordered. WOB won the purse bid at a price of $7.15M. Notably, the WOB lawsuit claims DiBella’s bid was for $5.1M.
- The agreed payout would include 10% of the amount bid ($715K) to the winner as a bonus and then a 70-30 split thereafter. But, the parties still had to negotiate other parts of the fight including drug testing. The amount would also cover a 3% WBC sanction fee.
- According to the WOB lawsuit, Wilder would receive $4,504,500, Povetkin $1,930,500 and the winner would receive $715,000.
- Wilder’s side wanted to institute a drug program conducted by the Voluntary Anti-Doping Association (“VADA”).
- Negotiations continued but suspicions by Wilder’s camp about Povetkin’s use of performance enhancing drugs increased.
- With the parties at an impasse, the WBC stepped in and instituted an agreement on April 6, 2016. In the agreement, the drug testing program included VADA testing under the “WBC Clean Boxing Program.”
- Since WOB won the purse bid, the fight was to take place in Moscow, Russia on May 21, 2016.
- An agreement was signed on April 11, 2016. A copy is attached to the Wilder Complaint and is below.
- On April 19, 2016 an Escrow Agreement was entered into in which $4,369,365 was put into an Escrow (identified as Chicago Title in the WOB lawsuit). The Escrow Agreement contained a (confidential per Wilder’s attorneys) liquidated damages provision.
- Povetkin tested positive for Meldonium in an April 27, 2016 test.
- The WBC issued a ruling that the fight would not take place as scheduled.
- Wilder’s side advised the Escrow Agent not to disburse any of the money in escrow until it received a “joint instruction from the parties or a non-appealable order from a court of competent jurisdiction.”
Word of Boxing, LLC, et al. v. Deontay Wilder, et al.
The WOB lawsuit mitigates the finding that Povetkin tested positive for Meldonium. This substance was the same one that tennis star Maria Sharapova tested positive for and has received a two-year ban from the International Tennis Federation. In the UFC, Islam Makhachev tested positive for Meldonium and was pulled from the UFC on Fox 19 card. The ban on Meldonium was instituted by the World Anti-Doping Agency (“WADA”) on January 1, 2016. It was added to the list of banned substances and notice was given to athletes three months earlier in September 2015.
However, earlier this year, WADA acknowledged that there was a lack of clear scientific information on excretion times. Thus, this new revelation may actually overturn certain notices of infraction. In fact, this was noted by WOB’s attorneys in its lawsuit.
It argues that Meldonium found in Povetkin’s sample were traces and could not impact an athlete’s performance. It should be noted that both “A” and “B” samples found Meldonium. Povetkin admits to using Meldonim in 2015, prior to its ban. But, the facts reflect that he had a negative sample in April 7 and 8, 2016 but then tested positive in an April 27, 2016 sample.
WOB’s breach of contract claim cites that Wilder did not allow the WBC, the governing body for this fight, make a determination on the Povetkin drug test. Rather, Wilder and his promotion decided not to participate which WOB claims as the breach.
It also cites a breach of the escrow agreement with respect to the monies lodged in an Escrow Account which was to pay for the purses. WOB claims that since the bout did not occur, it should receive its money back from the trust but Wilder has “taken actions to prevent Chicago Trust from releasing such funds…including through a letter directing Chicago Trust to refrain from disbursing the Escrow Property to World of Boxing.
The defamation claim is rather unique as it claims Wilder and his promotion arm instituted a “Smear Campaign” against Povetkin. The WOB Complaint lists multiple news reports where it claims Lou DiBella and his promotion provided the outlets with false statements. WOB claims Povetkin did not cheat or lie and the “trace amounts” in Povetkin’s April 27, 2016 sample do not support the fact that he attempted to do so per the WOB lawsuit. WOB claims the statements were made to avoid their contractual obligation of Wilder having to fight in Moscow, Russia.
WOB is seeking $34.5M in its lawsuit. It is looking for the $4,369,365.000 in the Escrow Account and its defamation claim seeks $10 million.
Leave it to boxing to provide us with some of the more unique contractual legal issues in the sport. There is an issue of who breached the contract between the parties. Should Wilder have a claim due to the positive drug test from Povetkin? Or, does Povetkin side have an argument against Wilder for not following the WBC procedures? One has to think that Povetkin has a right to appeal the VADA ruling especially with the uncertainty of Meldonium. But, we see that the contentious negotiations between the parties have now spilled over into the courts. Wilder has found another fight in lieu of Povetkin. But, does Povetkin have a claim against Wilder for blocking funds to be returned to them in Escrow? It’s clear there is a liquidated damages provision in the Escrow Agreement of $2.5 million as both sides seek that it damages.
MMA Payout will keep you posted.
June 21, 2016
MMA Junkie reports that Zuffa has sent an email to its employees refuting the story that the UFC has been sold. Dave Sholler has made an official statement denying the report from FloCombat that the company has been purchased.
Sholler told MMA Junkie that, “FloCombat.com’s report indicating that the UFC has been sold is false.”
An internal email sent to Zuffa employees was obtained by Junkie addressing the rumors and report of the sale. “A report today by FloComat.com indicating that the company has been sold is false,” read the email obtained by Junkie. It went on to state that the company’s attorneys would “investigate and take all appropriate legal actions against the parties publishing and contributing to these false stories.”
The report stated that Zuffa had accepted a bid for $4.2 billion to sell the UFC. No formal announcement has come forth despite the news that 4 entities had submitted bids to purchase the company late last week.
This is semantics but it seems that the internal email refutes that the UFC has been sold. The question is whether it will be sold. The company has to cover itself at this point since the concern is that anything could unravel the deal (if the news is accurate). The internal email and public denial is to ensure employees that their positions are secure. As for whether lawyers for the UFC will come in to file a lawsuit against the alleged “false” report seems to be posturing on the part of the company. Defamation would seemingly be the only claim the company might have although we do not have all of the facts at this point.